W.S. and Department of the Air Force, Tinker Air Force Base, OK (Board decision, October 5, 2015)

ECAB remand decision. The Board set aside OWCP’s February 5, 2015 hearing schedule award and remanded for the related hearing loss files to be combined and a new decision. The proper impairment award remains unresolved. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

W.S., an Air Force employee, appealed a schedule award corresponding to 11 percent hearing loss in both ears. He pointed to a later examination in another hearing loss claim file, but that file was not before the Board. The Board found that the related claims should be combined so OWCP could consider all relevant medical evidence and avoid inconsistent decisions. It set aside the award and remanded for a new decision.

Decision snapshot

• Authority: Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq.
• Outcome: Hearing schedule award set aside and remanded to combine claim files.
• Key point: A related hearing claim file contained potentially relevant evidence that OWCP needed to review together.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
W.S., Appellant
)
)
and ) Docket No. 15-0969
)
Issued: October 5, 2015
DEPARTMENT OF THE AIR FORCE, TINKER )
AIR FORCE BASE, OK, Employer
)
__________ )

Appearances: Case Submitted on the Record
David G. Jennings, Esq., for the appellant
Office of Solicitor, for the Director

ORDER REMANDING CASE

Before:
CHRISTOPHER J. GODFREY, Chief Judge
PATRICIA H. FITZGERALD, Deputy Chief Judge COLLEEN DUFFY KIKO, Judge

On March 20, 2015 appellant, through counsel, filed a timely appeal from a February 5, 2015 merit decision of the Office of Workers’ Compensation Programs (OWCP), claim number xxxxxx830. OWCP granted appellant a schedule award for 11 percent permanent impairment of binaural hearing loss.1 The appeal was docketed as No. 15-0969.

The Board has duly considered the matter and finds that the case is not in posture for decision. On October 19, 2005 appellant filed an occupational disease claim (Form CA-2) alleging that he developed hearing loss due to factors of his federal employment. OWCP accepted appellant’s claim for noise-induced binaural hearing loss on January 17, 2006. On June 19, 2013 appellant filed a claim for a schedule award. In its February 5, 2015 decision, OWCP granted appellant a schedule award for 11 percent binaural hearing loss, based on a December 12, 2005 report and accompanying audiometric testing from Dr. Richard Dawson, a Board-certified otolaryngologist, and an OWCP medical adviser’s January 12, 2006 report. However, it appears that appellant also has another hearing loss claim pending before OWCP, claim number xxxxxx654, and that appellant underwent a second opinion examination in that

1
The February 5, 2015 decision does not actually list a percentage of hearing loss. However, the number of weeks of compensation granted, 22, comports with 11 percent of the maximum number of weeks of compensation for a 100 percent, or complete loss of hearing, in both ears, 200 weeks. See 5 U.S.C. § 8107(c)(13)(b). claim on March 14, 2013. The record for this other claim is not before the Board in the present appeal.

On appeal, appellant’s counsel maintains that appellant is entitled to a greater impairment rating based on a March 14, 2013 second opinion evaluation. It appears that claim number xxxxxx654 contains evidence pertinent to the present claim. Under its procedures, OWCP has determined that cases should be combined where a new injury case is reported for an employee who previously filed an injury claim for a similar condition or the same part of the body.2 In the instant appeal, for a full and fair adjudication, appellant’s hearing loss claims should be combined pursuant to OWCP’s procedures. This will allow OWCP to consider all relevant claim files in developing appellant’s claim. Moreover, to consider appellant’s appeal at this stage would involve a piecemeal adjudication of the issues in this case and raise the possibility of inconsistent results. It is the Board’s policy to avoid such an outcome.3

Accordingly, the Board will remand the case to OWCP for doubling of claim number xxxxxx654 with the current claim number xxxxxx830. Following this and such other development as deemed necessary, OWCP shall issue a de novo decision on appellant’s claim for hearing loss.

IT IS HEREBY ORDERED THAT the February 5, 2015 decision of the Office of Workers’ Compensation Programs is set aside and the case remanded to OWCP for further proceedings consistent with this order of the Board.

2
Federal (FECA) Procedure Manual, Part 2 -- Claims, File Maintenance and Management, Chapter 2.400.8(c)(1) (February 2000).
3
See William T. McCracken, 33 ECAB 1197 (1982).

2
Issued: October 5, 2015
Washington, DC

Christopher J. Godfrey, Chief Judge
Employees’ Compensation Appeals Board

Patricia H. Fitzgerald, Deputy Chief Judge Employees’ Compensation Appeals Board

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

3